Steven D. Smith

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It is an honor for me to be able to participate in this Symposium with such distinguished company, and I want to thank the Mercer Law Review and the symposium organizers for inviting me. I do feel a bit awkward, though, commenting on Professor Marianne Constable's paper. As it happens, I agree with most of the sentences in the paper, taken one-by-one, but I am not sure that I catch the larger vision that the paper seeks to convey, and I am also unsure how Professor Constable's astute observations about law and language respond to the overall theme of this symposium-namely, "Citizenship and Civility in a Divided Democracy." So here I will try to discharge the duties of commentator by attempting to explain my difficulty with the paper and offering some very tentative observations about points Professor Constable may be making.

Professor Constable's paper is devoted to describing various ways in which law is bound up with, or is, language. Lawyers and judges work in and through language. Contracts consist of written or spoken language. Perjury laws punish particular forbidden uses of language. The First Amendment protects various kinds of uses of language against government regulation. "[L]anguage is the medium of law," Professor Constable explains. "It is more than a tool or resource; it constitutes the shelter from which we know the world and act in it .... Our claims of law happen through our words in the world."

All this seems to me perfectly true-too true, maybe. That is because on first reading or hearing (and maybe on second reading as well, but possibly not on third hearing?), Professor Constable's insistence that law works pervasively through language seems to have all of the virtues, but also all of the limitations, of an obvious truism.